FIRST DIVISION

BARNES, P. J.,

MCMILLIAN and REESE, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten days

of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

June 19, 2018

In the Court of Appeals of Georgia

A18A0696. BLACKWELL v. THE STATE.

REESE, Judge.

A jury found Kenneth Blackwell guilty of aggravated child molestation,

aggravated sexual battery, and statutory rape.1 The trial court sentenced Blackwell to

life plus 20 years’ imprisonment. Blackwell appeals from the denial of his amended

motion for new trial, arguing, inter alia, that histrial counsel wasineffective in failing

to object to the improper admission of child hearsay evidence. For the reasons set

forth, infra, we affirm.

Viewed in the light most favorable to the jury’s verdict,

2

the evidence presented

at trial showed the following facts. In 2006, when the victim, K. S. was about seven

1

 See OCGA §§ 16-6-4 (a) (1), (c); 16-6-22.2 (b); 16-6-3 (a). 

2

 See Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).
years old, Blackwell began dating K. S.’s mother. At the time, K. S. and her family

lived in Ohio. According to K. S., Blackwell “started to touch” her around that time,

using his fingers to touch her breasts and her vagina. Two or three years later, when

K. S. was nine or ten years old, Blackwell began having sexual intercourse with her.

In 2010, when K. S. was ten or eleven years old, her family and Blackwell

moved to Gwinnett County, where the sexual intercourse and fondling continued. In

addition, Blackwell began to force her to perform oralsex on him. According to K. S.,

the sexual abuse happened “[a] lot,” but she did not tell her mother because she

thought her mother would not believe her.

Then, in July 2012, when K. S. was 13 years old, Blackwell impregnated her,

and she had to undergo a second-trimester abortion. According to K. S., she did not

tell her mother that Blackwell was the man who had impregnated her, and her mother

did not ask her who it had been. Blackwell, however, told K. S.’s mother that she had

been raped by someone in the neighborhood. It is undisputed that neither K. S.’s

mother nor Blackwell called the police to report the alleged rape.

Following the abortion, Blackwell continued to have sexual intercourse and oral

sex with K. S. repeatedly until early May 2014, when she was 15 years old. About two

weeks after the last time Blackwell sexually assaulted her, K. S. ran away from home

2
and went to a friend’s house seeking a place to spend the night. According to K. S.,

she ran away because she was afraid for her own safety and that of her little sister, who

was five or six years old at the time.

The friend’s mother testified that K. S. told her “about the things [Blackwell

was] doing to her” and that she had told her mother about the abuse several times, but

her mother did not believe her. The friend’s mother testified that K. S. had “told [her

that] ever since she was [nine years old, Blackwell] had been touching her and he

ha[d] sex with her and . . . made her perform oral sex on him and that she [had

become] pregnant by him . . . when she was . . . 13 or 14 – and that the child . . . was

. . . aborted[.]” The friend’s mother, who was a police officer, called K. S.’s mother,

who arrived shortly thereafter, and the police.

The Gwinnett County police officer who responded to the call, Angelica

Grissom, testified at trial that she spoke briefly with K. S. at the friend’s home. K. S.

told Grissom that Blackwell

started touching her when she was about [seven] years old and that he

actually started inserting his penis or penetrating her when she was about

[ten]. [K. S.] initially told [Grissom] that in the summer of 2013 she had

an abortion. [H]er mom [told Grissom, however,] that she paid for an

abortion in the summer of 2012. [K. S.] stated [that Blackwell] would

normally come into her bedroom late at night when her mom was asleep.

3
She stated thatmany timesshe was actually asleep herself and [Blackwell

would] wake her up. [K. S. stated that the sexual abuse] happened for

several years. [T]heir last encounter was about two weeks prior to th[e]

report being filed with the police [in May 2014]. 

Grissom also testified that she asked K. S.’s mother if she believed K. S.’s claims

about Blackwell, and the mother responded that she did.

3

Detective Kim Riddle with the Gwinnett County Police Department’s Special

Victims Unit conducted a forensic interview of K. S. in June 2014. According to

Riddle, K. S. said that the sexual abuse in Gwinnett County started in 2010 when she

was in 6th grade and about eleven years old and that it continued “until two or three

weeks prior to the report,” i.e., early May 2014. In fact, K. S. specifically told Riddle

thatshe had performed oralsex on Blackwell about two weeks before she reported the

abuse. The State played a redacted video recording of the nearly two-hour forensic

3 To the extent this testimony constituted inadmissible hearsay or improper

bolstering, Blackwell’s trial counsel did not object to this testimony at trial, nor did

Blackwell raise the failure to object as an ineffective assistance claim or raise this

issue on appeal. Thus, any error in the admission of this statement was waived. See

OCGA § 24-1-103 (a) (“Error shall not be predicated upon a ruling which admits . .

. evidence unless a substantial right of the party is affected and[ ] a timely objection

or motion to strike appears of record[.]”); McGlocklin v. State, 292 Ga. App. 162, 163

(664 SE2d 552) (2008) (failure to raise ineffective assistance claim in trial court

constitutes waiver); Cobble v. State, 268 Ga. App. 792, 794 (2) (603 SE2d 86) (2004)

(arguments not enumerated as error in brief are waived).

4
interview for the jury. During the interview, K. S. detailed the years of sexual abuse

by Blackwell, telling Riddle that it happened “whenever [Blackwell] wanted it.”

In addition to this evidence, K. S.’s younger brother, D. S., testified that he

learned about his sister’s assault after she reported it. According to D. S., she told him

“that the small period of time when [Blackwell] was living with [them] in [Ohio,] . .

. [Blackwell] would start feeling her and . . . she couldn’t tell anybody because he

threatened to kill all of [them.] [After they moved to Georgia,] it started picking up

more and more[,] and eventually she had an abortion.”

The State indicted Blackwell, charging him with committing the acts of

aggravated childmolestation, aggravated sexual battery, and statutory rape against the

victim. According to each count, Blackwell committed these acts sometime between

October 1, 2010, and May 1, 2014.

After Blackwell was convicted on all three of the charged crimes, he filed a

motion for new trial. Blackwell’s trial counsel testified at the motion hearing that he

did not file a motion in limine or object to the admission of K. S.’s out-of-court

statements because he did not believe he had a legal basis to object, given K. S.’s age

when she made the statements and the fact that she was available to testify at trial.

5
The trial court denied the motion for new trial, ruling that K. S.’s out-of-court

statements to her friend’s mother, her brother, Grissom, and Riddle (hereinafter, “the

hearsay witnesses”) were admissible under the child hearsay statute because she was

under 16 years old at the time she made the statements. The court also ruled that the

statements were admissible as prior consistent statements. Thus, the court concluded

that counsel’s failure to raise a meritless objection did not constitute deficient

performance. Blackwell appeals.

On appeal from a criminal conviction, we view the evidence in the

light most favorable to the verdict and an appellant no longer enjoys the

presumption of innocence. This Court determines whether the evidence

is sufficient under the standard of Jackson v. Virginia,

4

and does not

weigh the evidence or determine witness credibility. Any conflicts or

inconsistencies in the evidence are for the jury to resolve. As long as

there is some competent evidence, even though contradicted, to support

each fact necessary to make out the State’s case, we must uphold the

jury’s verdict.

5

4

 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

5 Walker v. State, 329 Ga. App. 369, 370 (765 SE2d 599) (2014) (punctuation

and additional footnote omitted).

6
“The standard of Jackson v. Virginia,[6

] is met if the evidence is sufficient for any

rational trier of fact to find the defendant guilty beyond a reasonable doubt of the

crime charged.”7

In order to prevail on a claim of ineffective assistance of counsel,

a criminal defendantmustshow that counsel’s performance was deficient

and that the deficient performance so prejudiced the client that there is

a reasonable likelihood that, but for counsel’s errors, the outcome of the

trial would have been different.[

8

]The criminal defendantmust overcome

the strong presumption that trial counsel’s conduct falls within the broad

range of reasonable professional conduct. We accept the trial court’s

factual findings and credibility determinations unless clearly erroneous,

but we independently apply the legal principles to the facts.9

“Since an appellant claiming ineffective assistance of counsel must show both

deficient performance and actual prejudice stemming from that deficiency, an

insufficientshowing on either of these prongs relievesthe reviewing court of the need

6

 443 U. S. at 319 (III) (B).

7 Bautista v. State, 305 Ga. App. 210, 211 (1) (699 SE2d 392) (2010).

8

Strickland v. Washington, 466 U. S. 668, 690 (III) (A) (104 SCt 2052, 80 LE2d

674) (1984).

9 Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003) (citations and

punctuation omitted).

7
to address the other prong.”

10 With these guiding principles in mind, we turn now to

Blackwell’s specific claims of error.

1. As an initial matter, we conclude that K. S.’s testimony was sufficient to

prove Blackwell’s guilt beyond a reasonable doubt, i.e., that he committed at least one

criminal act in the manner alleged in each count of the indictment – aggravated child

molestation,

11

aggravated sexual battery,

12

and statutory rape

13

 – between October 1,

2010, and May 1, 2014.

10 Riggins v. State, 279 Ga. 407, 409 (2) (614 SE2d 70) (2005) (citation and

punctuation omitted).

11 See OCGA § 16-6-4 (c) (“A person commits the offense of aggravated child

molestation when such person commits an offense of child molestation which . . .

involves an act of sodomy.”); see also OCGA § 16-6-4 (a) (1) (applicable definition

of child molestation).

12 See OCGA § 16-6-22.2 (b) (“A person commits the offense of aggravated

sexual battery when he or she intentionally penetrates with a foreign object the sexual

organ . . . of another person without the consent of that person.”); see also OCGA §

16-6-22.2 (a) (“For the purposes of this Code section, the term “foreign object” means

any article or instrument other than the sexual organ of a person.”).

13 See OCGA § 16-6-3 (a) (“A person commits the offense of statutory rape

when he or she engages in sexual intercourse with any person under the age of 16

years and not his or her spouse, provided that no conviction shall be had for this

offense on the unsupported testimony of the victim.”).

8
It is axiomatic that “[t]he testimony of a single witness is generally sufficient

to establish a fact.”

14 Here, K. S. testified at trial that Blackwell repeatedly sexually

assaulted her by, among other things, having sexual intercourse and oral sex with her

throughout the applicable period while her family was living in Gwinnett County.

Moreover, K. S. specifically testified that Blackwell impregnated her in 2012 and, as

a result, she had to undergo a second-trimester abortion when she was only 13 years

old. K. S’s testimony regarding the pregnancy and abortion was supported by her

medical records, as well as Blackwell’s admission that he accompanied her and her

mother to the clinic where the procedure was performed.

15

14 OCGA § 24-14-8; see Hammontree v. State, 283 Ga. App. 736, 737 (1) (642

SE2d 412) (2007) (In a childmolestation case, “[t]he victim’stestimony alone sufficed

to establish the elements of the crime charged.”) (citations omitted); Lewis v. State,

275 Ga. App. 41, 42 (1) (619 SE2d 699) (2005).

15 See OCGA § 16-6-3 (a) (A conviction for statutory rape requires that the

victim’s testimony be supported by other evidence.); see also In the Interest of B. L.

S., 264 Ga. 643, 644 (2) (449 SE2d 823) (1994) (Evidence was sufficient to uphold

conviction for delinquency based upon statutory rape because “[i]t was not necessary

that the victim’s testimony be corroborated in every particular[.]”) (citation omitted);

Davis v. State, 204 Ga. App. 657 (1) (420 SE2d 349) (1992) (It is not necessary for the

State to present evidence to corroborate the victim’sidentification of the defendant as

the person who committed the statutory rape. “The quantum of corroboration needed

in a [statutory] rape case is not that which is in itself sufficient to convict the accused,

but only that amount of independent evidence which tends to prove that the incident

occurred as alleged.”) (citation and punctuation omitted).

9
Therefore, we find that K. S.’s testimony, as supported by her medical records

and Blackwell’s admission, was sufficient to authorize the jury’s verdict that

Blackwell was guilty beyond a reasonable doubt of the crimes as charged.

16

2. Blackwell argues that his trial counsel was ineffective for failing to object to

K. S.’s testimony about sexual abuse that took place in Ohio because the trial court

lacked subject matter jurisdiction over those crimes. Any objection would have been

futile, however, asthis evidence was admissible to show the prior difficulties between

Blackwell and the victim under OCGA § 24-4-404 (b).17

“Unlike similartransactions, prior difficulties do not implicate independent acts

or occurrences, but are connected acts or occurrences arising from the relationship

between the same people involved in the prosecution and are related and connected

16 See Lewis, 275 Ga. App. at 41-42 (1) (In a child molestation case, the

underage victim’s testimony that her stepfather fondled her and engaged in oral sex

and sexual intercourse with her over a period of years was corroborated by a friend’s

testimony that she witnessed at least one instance of oral sex and other witnesses

confirmed other sexually suggestive conduct between the defendant and victim.).

17

 See Lopez v. State, 332 Ga. App. 518, 520 (2) (773 SE2d 787) (2015).

10
by such nexus.”18 Thus, because the evidence was admissible in this case, Blackwell

has failed to show deficient performance by counsel.

19

3. Blackwell argues that his trial counsel was ineffective in failing to file a

motion in limine to exclude the out-of-court statements K. S. made to the hearsay

witnesses about any acts of sexual assault he committed against her prior to July 1,

2013. In a related argument, Blackwell contends that his trial counsel was ineffective

in failing to object to that hearsay testimony at trial. According to Blackwell, the outof-courtstatements were inadmissible under the Child Hearsay Statute because, at the

time those acts were committed, the hearsay exception only applied to statements

made by a child under the age of 14 years, and K. S. was 15 years old when she made

her initial outcry.

18 Lopez, 332 Ga. App. at 520 (2) (The notice requirement of OCGA § 24-4-404

(b) does not apply to evidence of prior difficulties between the accused and the alleged

victim.); see also OCGA § 24-4-414 (admissibility of evidence of prior acts of child

molestation committed by the defendant); Uniform Superior Court Rule 31.1

(procedural rules for the admission of similar transaction evidence).

19 See Anglin v. State, 302 Ga. 333, 343 (8) (806 SE2d 573) (2017) (“The failure

to pursue a futile objection does not amount to ineffective assistance.”) (citation and

punctuation omitted).

11
Asshown above, the indictment chargedBlackwell with sexually assaulting the

victim between October 2010 and May 2014. Thus, two different versions of

Georgia’s Child Hearsay Statute apply in this case.

(a) For the acts of sexual assault that Blackwell committed against K. W.

between July 1, 2013, and May 1, 2014, OCGA § 24-8-820 applied.

20 Pursuant to that

statute,

[a] statement made by a child younger than 16 years of age describing

any act of sexual contact or physical abuse performed with or on such

child by another or with or on another in the presence of such child shall

be admissible in evidence by the testimony of the person to whom made

if the proponent of such statement provides notice to the adverse party

prior to trial of the intention to use such out-of-court statement and such

child testifies at the trial, . . . and, at the time of the testimony regarding

the out-of-court statements, the person to whom the child made such

statement is subject to cross-examination regarding the out-of-court

statements.

The record shows that the statute’s notice and procedural requirements were met in

this case. Thus, as Blackwell appears to concede in his brief, any out-of-court

20 See Ga. L. 2013, p. 222, §§ 13 (revising OCGA § 24-8-820), 21 (“This Act

shall become effective on July 1, 2013, and shall apply to offenses which occur on or

after that date. Any offense occurring before July 1, 2013, shall be governed by the

statute in effect at the time of such offense.”). 

12
statements made by K. S. to the hearsay witnesses about acts of sexual abuse

committed by Blackwell between July 1, 2013, and May 1, 2014, were admissible

under OCGA § 24-8-820.

(b) For acts of sexual assault that were committed against K. S. before July 1,

2013, former OCGA § 24-3-16 applied.

21

 That statute provided:

A statement made by a child under the age of 14 years describing any

sexual contact or physical abuse performed with or on the child by

another . . . is admissible in evidence by the testimony of the person or

persons to whom made if the child is available to testify in the

proceedings and the court finds that the circumstances of the statement

provide sufficient indicia of reliability.

22

Thus, Blackwell is correct that the hearsaywitnesses’testimony recounting statements

made by K. S. about acts of sexual abuse by Blackwell that occurred before July 1,

21 See OCGA § 24-8-820; see also State v. Walker, 342 Ga. App. 733, 733-734

(805 SE2d 262)(2017).TheGeorgia General Assembly substantially reenacted former

OCGA § 24-3-16 (redesignating the statute as OCGA § 24-8-820) when it enacted the

new Evidence Code. See Ga. L. 2011, p. 99, § 2. The new Evidence Code had an

effective date of January 1, 2013. See Ga. L. 2011, p. 99, § 101. Thus, the former

version of OCGA § 24-8-820 technically applied to acts committed in this case

between January 1 and July 1, 2013. Given the “nearly identical” language in former

OCGA § 24-3-16 and former OCGA § 24-8-820, see Laster v. State, 340 Ga. App. 96,

99 (1) n. 2 (796 SE2d 484) (2017), the instant analysis isthe same under both statutes.

22

 See Ga. L. 1995, p. 937, § 1. 

13
2013, were not admissible under OCGA § 24-3-16, because K. S. was 15 years old at

the time she made the statements.

Pretermitting whether Blackwell’strial counsel’s performance was deficient in

failing to object to this evidence, however, we find that Blackwell has failed to show

that there is a reasonable probability that the outcome of the trial would have been

different if the evidence had been excluded.

23 Here, the hearsay witnesses’ testimony

recounting K. S.’s statements about sexual abuse that occurred prior to July 1, 2013,

was merely cumulative of K. S.’s trial testimony and other evidence in this case, all

of which was both admissible at trial and sufficient to sustain the jury’s verdict.

24 As

this Court has repeatedly held, the failure to object to hearsay evidence that is merely

cumulative of other, properly admitted evidence is harmless and, thus, does not

constitute ineffective assistance of counsel.

25 Consequently, Blackwell has failed to

23

 See Robinson, 277 Ga. at 75-76.

24

 See Division 1, supra.

25 See, e.g., Thomas v. State, 296 Ga. App. 170, 174 (2) (c) (674 SE2d 56)

(2009); Sullivan v. State, 295 Ga. App. 145, 151-152 (4) (671 SE2d 180) (2008);

Currington v. State, 270 Ga. App. 381, 387 (4) (606 SE2d 619) (2004); Ingram v.

State, 262 Ga. App. 304, 305 (2) (585 SE2d 211) (2003).

14
meet his burden of demonstrating prejudice that arose from the improper admission

of this evidence.26

4. Similarly, Blackwell contends that the judgment of conviction is void ab

initio because it cannot be discerned whether the jury improperly considered evidence

of the Ohio incidents in reaching its verdict.

Pretermitting whether such consideration would have been improper,27each

count in the indictment accused Blackwell with committing the charged act “in the

State of Georgia and County of Gwinnett, on and between the 1st day of October,

2010 and the 1st day of May, 2014[.]” In the jury charge, the trial court read the

indictment to the jury and specifically instructed the jury that venue in Gwinnett

County had to be proven by the State beyond a reasonable doubt as to each crime

charged in the indictment. The court properly instructed the jury, and we must presume

that the jury followed this instruction in the absence of evidence to the contrary.

28

Judgment affirmed. Barnes, P. J., and McMillian, J., concur.

26 See Brown v. State, 332 Ga. App. 635, 638 (2) (774 SE2d 708) (2015)

(“Failure to satisfy either prong of the Strickland standard is fatal to an ineffective

assistance claim.”) (citations omitted).

27

 See Division 2, supra.

28

 See Brown v. State, 300 Ga. 446, 449 (3) (796 SE2d 283) (2017).

15